General Terms and Conditions

You accept this Agreement by the earlier of:

1. (a)

   signing and returning this Agreement to us;

2. (b)

   confirming by email that you accept this Agreement;

3. (c)

   confirming that you accept this Agreement via the platforms or applications through which we provide this Agreement to you, including our website;

4. (d)

   instructing us (in writing) to proceed with the provision of the Services; and

5. (e)

   making part or full payment of the Price.

This Agreement will commence on the Commencement Date and will continue for the Term.

In consideration of your payment of the Price, we will provide the Services in accordance with this Agreement, whether ourselves or through our Personnel.

This Agreement constitutes a “standing offer” under which, during the Term, you may engage us to provide the Services under separate Orders.

You may issue Orders online, over the phone or by any other process which we may advise to you, from time to time.

We will only be required to comply with an Order if we have agreed to the terms of the relevant Order in writing, if we have accepted the Order in accordance with the terms of the Order, or if the Parties have agreed in writing to an amended Order.

The Order issued by you, may be accepted by one of our Related Entities. If one of our Related Entities accepts the Order, that Related Entity will be set out in the Order and references to “we”, “us”, “our” and “Party” or “Parties” as used throughout this Agreement, shall mean that Related Entity set out in the Order and not the Group Company. The Related Entity will be responsible for performing the Services under the Order and the Group Company will not be a party to that Order.

Each Order is subject to, and will be governed by, this Agreement and any other conditions agreed to by the Parties in writing. If the documents forming this Agreement are inconsistent, they apply in this order (highest first):

1. (a)

   any written agreement for the Services signed by both Parties;

2. (b)

   our quote, including its terms and conditions; and

3. (c)

   these terms.

Terms in or referred to in your purchase order or any other document apply only if we agree to them in writing.

Unless otherwise agreed between the Parties, if this Agreement is terminated, then any current Order will also terminate on the date of termination.

Subject to clause 5.3, either Party may request a variation or change to the Services, including the timing for the provision of the Services, by providing written notice (including by email) to the other Party, with details of the variation or change (Variation Request).

If you provide us with a Variation Request, we will not be obliged to comply with a Variation Request unless:

1. (a)

   we accept the Variation Request, including any variation to the Price to effect the Variation Request (Price Variation), in writing; and

2. (b)

   the Price has been adjusted to reflect the Price Variation.

If we provide you with a Variation Request, we will set out any relevant Price Variation in the Variation Request.

If we consider that any instruction or direction from you constitutes a variation, then we will not be obliged to comply with such instruction or direction unless a Variation Request has been issued in accordance with clause 5.2.

Where the Services are varied or changed, or the costs of providing the Services increase (Variation Event), and the cause of that Variation Event relates to, or is connected with, an event or circumstance beyond our reasonable control, you agree to pay us our reasonable additional costs and expenses that we may suffer or incur as a result of the Variation Event, as a debt due and immediately payable.

If we are delayed in carrying out the Services by a cause beyond our reasonable control or by your act or omission or by an act or omission of one of your Personnel then the time for carrying out the Services shall be extended to the extent of the delay and you shall pay the costs incurred by us by reason of the delay. Nothing in this clause shall oblige you to pay for costs for a delay which have already been included in the Price or in an agreed Price Variation.

You agree to pay us:

1. (a)

   the Price;

2. (b)

   all Expenses not included in the Price; and

3. (c)

   any other amount payable to us under this Agreement,

in accordance with the Payment Terms.

If any payment has not been made in accordance with the Payment Terms, we may (at our absolute discretion):

1. (a)

   immediately cease providing the Services, and recover, as a debt due and immediately payable from you, the payment amount and our additional costs of doing so; and/or

2. (b)

   charge interest at a rate equal to the Reserve Bank of Australia’s cash rate, from time to time, plus 8% per annum, calculated daily and compounding monthly, on any such amounts unpaid after the due date for payment in accordance with the Payment Terms.

Costs and Expenses: You agree to indemnify us for any costs, expenses, liabilities or claims paid or incurred by us as a result of a breach of this Agreement by you. Without limiting the generality of the foregoing, you agree to pay to us on demand any costs or expenses (including legal costs and expenses on a full indemnity basis) incurred by us as a result of a breach by you of this Agreement.

We may conduct inspections on the Premises in order to carry out the Services. You acknowledge that our Services are based on visual inspections only.

Despite anything to the contrary, to the maximum extent permitted by law, we will not be liable for, you waive and release us from and against, and you agree to indemnify us from any Liability in connection with:

1. (a)

   matters arising outside of the visual inspections;

2. (b)

   matters arising that relate to information that was available after the date of the visual inspection;

3. (c)

   pre-existing deterioration or damage to the building that becomes known in the future;

4. (d)

   matters outside the scope of the agreed Services;

5. (e)

   areas that were inaccessible at the time of the visual inspection; and

6. (f)

   any electrical or mechanical matters.

When undertaking visual inspections, you agree that we may be bound to comply with applicable Laws, including, but not limited to, privacy laws, or contractual obligations. We will not be obliged to do anything under this Agreement which may not be permitted under the applicable Laws or that we have no express right to do, such as disclosing information that is not owned by us.

If an inspection is rescheduled without fault on our part, you agree to pay us any costs wasted by us as a result, as well as a rescheduling fee equivalent to AUD$500, on demand.

By engaging AusDilaps to carry out a condition survey at a residential or commercial property, you recognise and accept that we retain the right, at our sole discretion, to provide the property owner(s) with a copy of the inspection report(s), should they request it.

We may photograph the visible, external condition of a property from a public place, such as a footpath, road reserve or other council-owned or publicly accessible land, without entering the property. When we do:

1. (a)

   the photographs record only the visible, external condition of the property and are not used to identify any individual;

2. (b)

   we do not collect personal information beyond the property address; and

3. (c)

   we use, store, reproduce and disclose the photographs to record, evidence and report on the property’s condition before nearby construction works, including to you, the relevant council, the project principal and their insurers and professional advisers, and as set out in clause 13.7.

You agree to indemnify us for any Liability for any claim arising from or in connection with you disclosing, or providing access to, our Services (including any Deliverables) to third parties without our written consent. For the avoidance of doubt, the indemnity in this clause 12 extends to any Liability for any claim arising from or in connection with a third party’s reliance on our Services (including any Deliverables).

This clause 12 will survive termination or expiry of this Agreement.

As between the Parties:

1. (a)

   we own all Intellectual Property Rights in Our Materials;

2. (b)

   you own all Intellectual Property Rights in Your Materials; and

3. (c)

   nothing in this Agreement constitutes a transfer or assignment of any Intellectual Property Rights in Our Materials or Your Materials.

As between the Parties, ownership of all Intellectual Property Rights in any New Materials will at all times vest, or remain vested, in us upon creation. To the extent that ownership of such Intellectual Property Rights in any New Materials do not automatically vest in us, you agree to do all things necessary or desirable to assure our title to such rights.

We grant you a non-exclusive, revocable, worldwide, non-sublicensable and non-transferable right and licence, to use the New Materials, solely for the purposes for which they were developed and for your use and enjoyment of the Services, as contemplated by this Agreement.

You grant us a non-exclusive, revocable, worldwide, non-sublicensable and non-transferable right and licence, for the duration of the Term, to use Your Materials solely for the purposes for which they were developed and for the performance of our obligations under this Agreement (or under the relevant Order), as contemplated by this Agreement.

If you or any of your Personnel have any Moral Rights in any material provided, used or prepared in connection with this Agreement, you agree to (and agree to ensure that your Personnel) consent to our use or infringement of those Moral Rights.

In the use of any Intellectual Property Rights in connection with this Agreement, you must not (and you must ensure that your Personnel do not) commit any Intellectual Property Breach.

AusDilaps retains the intellectual property rights in photographs, records and other materials produced during an inspection (Site Records). These materials may be reused in reports prepared for other clients where relevant, provided that you are not identified and your confidential information is not disclosed. If you do not consent to this use, please notify us.

This clause 13 will survive termination or expiry of this Agreement.

Each Receiving Party agrees:

1. (a)

   not to disclose the Confidential Information of the Disclosing Party to any third party;

2. (b)

   to use all reasonable endeavours to protect the Confidential Information of the Disclosing Party from any unauthorised disclosure; and

3. (c)

   to only use the Confidential Information of the Disclosing Party for the purposes for which it was disclosed or provided by the Disclosing Party, and not for any other purpose.

The obligations in clause 14.1 do not apply to Confidential Information that:

1. (a)

   is required to be disclosed in order for the Parties to comply with their obligations under this Agreement;

2. (b)

   is authorised to be disclosed by the Disclosing Party;

3. (c)

   is in the public domain and/or is no longer confidential, except as a result of a breach of this Agreement;

4. (d)

   must be disclosed by Law or by a regulatory authority, including under subpoena; or

5. (e)

   is Site Records reused in accordance with clause 13.7.

Each Party agrees that monetary damages may not be an adequate remedy for a breach of this clause 14. A Party is entitled to seek an injunction, or any other remedy available at law or in equity, at its discretion, to protect itself from a breach (or continuing breach) of this clause 14.

This clause 14 will survive the termination of this Agreement.

Certain legislation, including the Australian Consumer Law, and similar consumer protection laws and regulations, may confer you with rights, warranties, guarantees and remedies relating to the provision of the Services by us to you which cannot be excluded, restricted or modified (Statutory Rights).

If the ACL applies to you as a consumer, nothing in this Agreement excludes your Statutory Rights as a consumer under the ACL. You agree that our Liability for the Services provided to an entity defined as a consumer under the ACL is governed solely by the ACL and this Agreement.

Subject to your Statutory Rights, we exclude all express and implied warranties, and all material, work and services (including the Services) are provided to you without warranties of any kind, either express or implied, whether in statute, at Law or on any other basis.

This clause 15 will survive the termination or expiry of this Agreement.

Despite anything to the contrary, to the maximum extent permitted by law, we will not be liable for, and you waive and release us from and against, any Liability caused or contributed to by, arising from or connected with:

1. (a)

   your or your Personnel’s acts or omissions;

2. (b)

   any use or application of the Services by a person or entity other than you, or other than as reasonably contemplated by this Agreement;

3. (c)

   any works, services, goods, materials or items which do not form part of the Services (as expressed in this Agreement), or which have not been provided by us;

4. (d)

   any Third Party Inputs; and/or

5. (e)

   any event outside of our reasonable control.

This clause 16 will survive the termination or expiry of this Agreement.

Despite anything to the contrary, to the maximum extent permitted by law:

1. (a)

   we will not be liable for Consequential Loss;

2. (b)

   a Party’s liability for any Liability under this Agreement will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the acts or omissions of the other Party (or any of its Personnel) (including the other Party’s failure to use reasonable efforts to mitigate their loss or damage), or any event or circumstance is beyond the first party’s control; and

3. (c)

   our aggregate liability for any Liability arising from or in connection with this Agreement will be limited to us resupplying the Services to you or, in our sole discretion, to us repaying you the amount of the Price paid by you to us in respect of the supply of the relevant Services to which the Liability relates.

This clause 17 will survive the termination or expiry of this Agreement.

We may terminate this Agreement or the relevant Order at any time by giving 30 days’ notice in writing to you.

This Agreement will terminate immediately upon written notice by:

1. (a)

   us, if:

   1. (1)

      you (or any of your Personnel) breach any provision of this Agreement and that breach has not been remedied within 10 Business Days of being notified by us;

   2. (2)

      you fail to provide us with clear or timely instructions or information to enable us to provide the Services;

   3. (3)

      for any other reason outside our control which has the effect of compromising our ability to provide the Services; or

   4. (4)

      you are unable to pay your debts as they fall due; and

2. (b)

   you, if we:

   1. (1)

      are in breach of a material term of this Agreement, and that breach has not been remedied within 10 Business Days of being notified by you; or

   2. (2)

      are unable to pay our debts as they fall due.

Upon expiry or termination of this Agreement:

1. (a)

   we will immediately cease providing the Services;

2. (b)

   you agree that any payments made by you to us are not refundable to you, and you are to pay for all Services provided prior to termination, including Services which have been provided and have not yet been invoiced to you, and all other amounts due and payable under this Agreement; and

3. (c)

   if this Agreement is terminated under clause 18.2(a)(1), (2) or (4), you also agree to pay us our additional costs arising from, or in connection with, such termination.

We will retain your documents (including copies) as required by law or regulatory requirements. Your express or implied agreement to this Agreement constitutes your authority for us to retain or destroy documents in accordance with the statutory periods, or on expiry or termination of this Agreement. We also retain Site Records for as long as they are reasonably needed for the purposes in clause 13.7 and to deal with claims about the condition of a property, and then securely destroy or de-identify them.

Termination of this Agreement will not affect any rights or liabilities that a Party has accrued under it.

This clause 18 will survive the termination or expiry of this Agreement.

If GST is payable on any supply made under this Agreement, the recipient of the supply must pay an amount equal to the GST payable on the supply. That amount must be paid at the same time that the consideration is to be provided under this Agreement and must be paid in addition to the consideration expressed elsewhere in this Agreement, unless it is expressed to be inclusive of GST. The recipient is not required to pay any GST until the supplier issues a tax invoice for the supply.

If an adjustment event arises in respect of any supply made under this Agreement, a corresponding adjustment must be made between the supplier and the recipient in respect of any amount paid by the recipient under this clause, an adjustment note issued if required, and any payments to give effect to the adjustment must be made.

If the recipient is required under this Agreement to pay for or reimburse an expense or outgoing of the supplier, or is required to make a payment under an indemnity in respect of an expense or outgoing of the supplier, the amount to be paid by the recipient is to be reduced by the amount of any input tax credit in respect of that expense or outgoing that the supplier is entitled to.

The terms “adjustment event”, “consideration”, “GST”, “input tax credit”, “recipient”, “supplier”, “supply”, “taxable supply” and “tax invoice” each has the meaning which it is given in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

Amendment: This Agreement may only be amended by written instrument executed by the Parties.

Assignment: A Party must not assign or deal with the whole or any part of its rights or obligations under this Agreement without the prior written consent of the other Party (such consent is not to be unreasonably withheld).

Counterparts: This Agreement may be executed in any number of counterparts that together will form one instrument.

Disputes: A Party may not commence court proceedings relating to any dispute, controversy or claim arising from, or in connection with, this Agreement (including any question regarding its existence, validity or termination) (Dispute) without first meeting with a senior representative of the other Party to seek (in good faith) to resolve the Dispute. If the Parties cannot agree how to resolve the Dispute at that initial meeting, either Party may refer the matter to a mediator. If the Parties cannot agree on who the mediator should be, either Party may ask the Law Society of New South Wales to appoint a mediator. The mediator will decide the time, place and rules for mediation. The Parties agree to attend the mediation in good faith, to seek to resolve the Dispute. The costs of the mediation will be shared equally between the Parties. Nothing in this clause will operate to prevent a Party from seeking urgent injunctive or equitable relief from a court of appropriate jurisdiction.

Email: You agree that we are able to send electronic mail to you and receive electronic mail from you. You release us from any Liability you may have as a result of any unauthorised copying, recording, reading or interference with that document or information after transmission, for any delay or non-delivery of any document or information and for any damage caused to your system or any files by a transfer.

Entire agreement: This Agreement contains the entire understanding between the Parties, and supersedes all previous discussions, communications, negotiations, understandings, representations, warranties, commitments and agreements, in respect of its subject matter.

Further assurance: Each Party must promptly do all things and execute all further instruments necessary to give full force and effect to this Agreement and their obligations under it.

Force Majeure: We will not be liable for any delay or failure to perform our obligations under this Agreement if such delay is due to any circumstance beyond our reasonable control (including but not limited to epidemics, pandemics, and Government sanctioned restrictions and orders, whether known or unknown at the time of entering into this Agreement).

Governing law: This Agreement is governed by the laws of New South Wales. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in New South Wales and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.

Insurance: We hold applicable insurances to carry out the Services.

Notices: Any notice given under this Agreement must be in writing addressed to the relevant address last notified by the recipient to the Parties. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission by email.

Online execution: This Agreement may be executed by means of such third party online document execution service as we nominate subject to such execution being in accordance with the applicable terms and conditions of that document execution service.

Privacy: Each Party must comply with the privacy laws that apply to it, including the Privacy Act 1988 (Cth). We handle personal information in accordance with our Privacy Policy. If you give us personal information about another person, such as a property owner’s or occupier’s contact details, you must be entitled to do so. Property owners and occupiers may contact us directly about photographs and records of their property.

Publicity: Provided we get your consent (such consent not to be unreasonably withheld), you agree that we may advertise or publicise the broad nature of our provision of the Services to you, including on our website or in our promotional material.

Relationship of Parties: This Agreement is not intended to create a partnership, joint venture, employment or agency relationship between the Parties.

Severance: If a provision of this Agreement is held to be void, invalid, illegal or unenforceable, that provision is to be read down as narrowly as necessary to allow it to be valid or enforceable, failing which, that provision (or that part of that provision) will be severed from this Agreement without affecting the validity or enforceability of the remainder of that provision or the other provisions in this Agreement.